Suburban Trails

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1250 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
Suburban Trails and Joseph Covino. Case 22–CA–
20553
September 30,1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 27, 1998, Administrative Law Judge Howard
Edelman issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, and the Respondent filed a brief in
response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Patrick E. Daly, Esq., for the General Counsel..
Frank A. Mastro, Esq. (Pruzzese, McDermott, Mastro & Mur-
phy), for the Respondent.
Mandy R. Steels, Esq., for the Charging Party.

1 The General Counsel contends that the Respondent’s counsel vio-
lated the judge’s sequestration order by providing its witness, general
manager Thomas Rossiter, with a copy of the transcript of the testi-
mony of witnesses Joseph Covino and James Eller in preparation for
Rossiter’s testimony. The Board has held that a violation of a seques-
tration order may warrant striking the tainted testimony if it can be
demonstrated that a party was prejudiced by the violation of the rule.
See Medite of New Mexico, 314 NLRB 1145, 1149 (1994), enfd. 72
F.3d 780 (10th Cir. 1995); Gossen Co., 254 NLRB 339, 342–344
(1981); and Unga Painting Corp., 237 NLRB 1306 (1978). After care-
fully scrutinizing the relevant testimony, we find that the General
Counsel was not prejudiced by the violation of the sequestration order.
First, we note that the judge indicated on the record that he would not
take the sequestration problem into account in considering Rossiter’s
credibility. In addition, we note that the judge found Covino, who was
the General Counsel’s primary witness, to be “a totally incredible wit-
ness and not worthy of belief except where he makes admissions
against his interest.” The judge further found that Eller was “often
vague and simply did not impress . . . as a truthful witness.” In view of
these findings by the judge, and in light of his having credited the Re-
spondent’s other witnesses, it is clear that Rossiter’s testimony did not
have a significant impact on the credibility resolutions that formed the
basis for the judge’s findings. Therefore, we find that the General
Counsel suffered no prejudice from the violation of the sequestration
order.
2 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on December 16 and 17, 1996, and Sep-
tember 16 and 17, 1997, at Newark, New Jersey. A complaint
issued dated June 28, 1996, which alleged that Joseph Covino,
an individual, was discharged by the Respondent, Suburban
Trails, because of his alleged activity on behalf of Local 1589,
United Transportation Union (the Union), in violation of Sec-
tion 8(a)(1) and (3) of the Act. The complaint also alleged two
allegations of 8(a)(1) violations of the Act.
On the entire record in this case, including my observation of
the demeanor of the witnesses and full consideration of the
briefs filed by counsel for the General Counsel and counsel for
the Respondent, I make the following
FINDINGS OF FACT
At all material times the Respondent is a corporation with an
office and place of business in Heightstown, New Jersey (the
Respondent’s Heightstown facility), where it has been engaged
in the intra and interstate bus transportation of passengers to
points within and outside the State of New Jersey. During the
preceding 12 months, the Respondent in conducting its business
operations derived gross revenues in excess of $250,000, and
during the same period of time, the Respondent purchased
goods and supplies valued in excess of $5000 directly from
points outside the State of New Jersey.
It is admitted, and I conclude that the Respondent has been
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
It is also admitted, and I conclude that the Union, Local
1589, United Transportation Union, is a labor organization
within the meaning of Section 2(5) of the Act.
The Respondent is engaged in providing line and charter bus
services throughout the State of New Jersey, in other States of
the United States and in Canada. Its principal terminal is lo-
cated at Monroe Township (the Heightstown garage), New
Jersey. The Company employs both full-time and part-time
operators. Its full-time operators and those employed in related
companies have been represented for many years for purposes
of collective bargaining by the Union.
Joseph Covino began his employment with the Respondent
as a part-time operator in mid-January 1994. Covino most
often was assigned to the Company’s line run from Heights-
town to the New York Port Authority bus terminal on 40th
Street and 8th Avenue in Manhattan. Occasionally, he did
charter work.
The Respondent maintains a lot on 39th Street, to park and
as a staging area for buses going into the terminal for departure.
When the lot was full, drivers would not routinely park on 39th
Street and remain with their buses until time to enter the termi-
nal. This practice generally was tolerated by the Port Authority
and city of New York police.
On February 17, 1995, Covino received a parking ticket.
Covino had parked his bus on 39th Street in a no-parking area
described above, and left his bus to get something to eat. When
he returned, the bus had been ticketed and moved by another
driver into the Respondent’s parking lot.
In October or November 1994, the Union initiated an organ-
izational drive among the Respondent’s part-time drivers. A
Board petition was filed and an election was ultimately con-
326 NLRB No. 123
SUBURBAN TRAILS 1251
ducted on January 5, 1995, in which the Union failed to obtain
a majority of the valid votes counted.1 Covino testified that
only he, employee Douglas Hesselbarth, and Union Representa-
tive Jimmy Eller passed out union cards. Covino testified he
passed out between 25 and 30 cards to various part-time driv-
ers. In addition, Covino testified he frequently spoke to the
part-timers, in the drivers’ bus to the Red and Tan lot in Jersey
City, explaining to them why he believed that the Union was in
their interest and urging them to support the Union. Covino
testified he also spoke to the part-time drivers about signing an
authorization card or otherwise supporting the Union in the
parking lot at the Heightstown garage, the Red and Tan lot, on
39th Street, or the downtown Manhattan holding area.
Covino testified that he engaged in this union activity every
day, for a period of 30 days. Covino testified he did this
openly; because he was instructed by Eller, a union representa-
tive, not to hide his union activity because they felt that in the
event of any discrimination it would not enhance their ability to
prove knowledge of this activity.
However, in response to questions put to him during cross-
examination, he was unable to name a single employee to
whom he had given a card, or to whom he spoke to.
The Respondent’s employees, Willie Majors, Howard Harris,
and George Green, credibly testified that they played an active
role in the campaign and in the distribution of union cards, and
that Covino played no role whatsoever, that at times Covino
spoke disparagingly of the Union.
Covino testified that in December 1994 he had a conversa-
tion with Respondent Vice President Ronald Kohn, an admitted
supervisor within the meaning of the Act, at the Heightstown
facility. The conversation, according to Covino, took place in
the dispatch area. Covino testified that Kohn asked him how he
felt about the Union, and he replied that he thought that unions
had served a good purpose. According to Covino, he then initi-
ated a conversation with Kohn, in which he offered to start a
suggestion program modeled after a military type program.
Kohn admitted that he was active in the Respondent’s cam-
paign, speaking with part-time employees and presenting the
Respondent’s point of view as to the Union. He recalls that
conversation with Covino, during which they discussed the
upcoming election. Covino told Kohn he was not really inter-
ested in the Union. He said he had plans to leave the Respon-
dent in the near future and build and manage a water recreation
park. In fact, he said he had a meeting in a couple of weeks
with Donald Trump, whom he hoped would not finance his
venture. Kohn admitted that he told Covino and other employ-
ees that he did not believe the Union was necessary, that the
Respondent had part-timers working for them for over 20 years,
and that he felt that the Respondent had treated them fairly and
would not continue to do so. Kohn denied asking Covino or
any employee how they felt about the Union. Kohn did not
recall seeing Covino wear a pocket protector bearing the union
insignia.
Covino testified that he had two conversations with Respon-
dent General Manager Thomas Rossiter, one before the election
and one after the election. He testified that the first conversa-
tion took place about 2 weeks before the election. It took place

1 The election was conducted in Case 22–RC–11024. I take official
notice that 134 employees voted in the election, of which 74 voted
against the participating union and 54 voted for the petitioner. There
were six challenges.
in the Heightstown parking lot in front of the drivers’ door.
Covino testified that he explained to Rossiter why he felt the
Union was good. During the course of that conversation,
Covino contends Rossiter said that if the Union won he was
prepared to take the Company into a strike.
Covino testified that he had a second conversation with Ros-
siter about the election 2 weeks after the voting. He contends
that during the course of this conversation Rossiter asked him
to encourage the drivers to withdraw their objections to the
election. He also testified that he told Rossiter that he had
voted “yes.”
Rossiter recalled both conversations. He credibly testified
that he was at the Heightstown garage approximately 2 weeks
before the election, when Covino came up to him and intro-
duced himself. This was the first time they met. Rossiter asked
him to support the Respondent in the election. Covino replied
that he hadn’t decided how he was going to vote. Covino then
turned the conversation to his water slide project, indicating
that he had talked to some of the Trump people, soliciting their
financial support. Rossiter told Covino that he had had some
dealings with the Economic Development Authority (EDA) and
could give him the card of an individual who might be helpful
to him. Rossiter denied that Covino told him that he thought
the Union was good for part-time employees, or that he told
him he would not take the Company out on strike if the Union
won.
With regard to the second conversation with Covino, Ros-
siter credibly testified that he was speaking to another individ-
ual in the Respondent’s New Brunswick facility parking lot
when Covino came up to him. Rossiter asked him if he had
contacted the EDA and inquired how the project was going.
According to Rossiter, the election was not discussed during
that conversation. He adamantly denied that there was any
discussion with Covino of the objections. Finally, he denied
that Covino told him that he had voted for the objection. Fi-
nally, he denied that Covino told him that he had voted for the
Union in the election.
James Eller, a union representative, testified that he gave un-
ion authorization cards to a part-time driver, Hesselbarth, and to
Covino for distribution to part-time drivers about 6 months
before the petition was filed in August 1995. Eller testified he
told Rossiter about the organizing effort that August. At a
meeting which took place before the petition was filed, Eller
testified that he told Rossiter that Covino and Hesselbarth
would not ultimately be representing the part-timers after the
election. Rossiter, according to Eller, called them “hotheads,”
but did not explain his alleged characterization. Eller identified
only Leroy McPherson as another part-timer who gave out
cards. Eller testified he told Rossiter about Covino and Hessel-
barth because he wanted to afford them protection from retalia-
tion, but he never told Rossiter or Kohn that McPherson was
also handing out cards. Rossiter credibly denied he had any
such conversation with Eller.
Willie Majors, an employee full-time driver, called by the
Respondent, testified credibly that he was asked by Union
Chairman James Eller to pass out cards to part-time employees.
Majors did so. Majors also credibly testified that he tried to
interest Covino in the Union on two occasions, as they “cush-
ioned” to New York on a company bus. On the first occasion,
Covino said that he was a trainer and did not feel he needed a
union. The second conversation was also on the drivers’ bus.
Again, Majors tried unsuccessfully to interest Covino in sup-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
porting the Union. Majors also testified that he never saw
Covino distributing cards.
Driver Howard Harris credibly testified that he, too, distrib-
uted cards at Eller’s request. He recalled that Eller had given
the cards to Willie Majors, Bill Bynes, Bob Armstrong, and a
driver named Malishewsky. Harris testified that he would not
see Covino five or six times a day. He would not “cushion”
with him on the bus to New York. Harris never observed
Covino solicit any other driver to sign a union card. Harris
never heard Covino encourage another driver to support the
Union. He never saw him wear any union insignia. Harris also
recalled a conversation with Covino before the election, in
which Covino said he did not want anything to do with the
Union. In Harris’ words, “before the election he never herd
Covino discuss nothing about the Union but bad.” Harris also
recalled that Majors and Hesselbarth said they did not want to
talk about the Union around Covino because he was not for the
Union.
George Green, the third driver called by Respondent, credi-
bly testified that he also passed out cards at Eller’s request.
Green told Willie Majors to leave Covino alone because
Covino was one of those who was not happy with the Union
people. Green never saw Covino wearing any union insignia or
distributing cards on behalf of the Union.
As set forth above, Covino received a parking ticket on Feb-
ruary 17, 1997. After he received the ticket, Covino met with
Tom Rossiter, the Respondent’s general manager. Covino
asked Rossiter about the Respondent’s policy on traffic tickets.
Rossiter replied that unless it’s a defective vehicle, it is the
driver’s responsibility to pay the ticket. Covino then asked
Rossiter if he would not mind if he went down and discussed
the ticket with a Port Authority police lieutenant. Rossiter told
him he had no objection, provided he did not ruffle their feath-
ers because he was concerned that they may react adversely to
that type of criticism. Covino did not tell Rossiter that he had
already spoken with Michael Kilcoyne, the Respondent’s op-
erations manager, and Kilcoyne had told him not to contact the
police.
Kilcoyne testified that Covino asked him, “What was the
Company policy regarding tickets?” Kilcoyne told him that the
driver was responsible. Covino then told Kilcoyne that he had
a meeting set up with the police to discuss the ticket. Kilcoyne
told him that the ticket was to be fought in the courts, not with
the police; that he was going to anger the police, and that he
should not pursue that avenue. Kilcoyne had another conversa-
tion with Covino less than a week later. Covino told Kilcoyne
that he had spoken with the police department and he had told
them they ought to either enforce the no-parking rule or not
enforce it. He said he told them they should make up their
mind. Kilcoyne told him that his actions would not create a
problem for the Company on 39th Street. Covino replied that
he would not start parking his bus at the Intrepid Museum, and
with that he left Kilcoyne’s office.
Shortly after the above conversation, Kilcoyne testified that
he began to receive telephone calls from commuters complain-
ing of the lines at the Port Authority. He also received com-
plaints from Willie Majors. Majors told Kilcoyne that drivers
were complaining to him that the police were running them off
39th Street and, as a result, they couldn’t get to the gate in time.
As a result of these complaints, Kilcoyne called the Heights-
town garage and told the dispatcher to have Covino give him
the ticket and it would not be paid by the Respondent. He also
told him to tell Covino to go someplace else and fight his battle,
in other words that he was being terminated.
Kilcoyne denied Covino’s assertion that he called him a f—
ing troublemaker. When Kilcoyne mentioned this to Rossiter,
Rossiter indicated that he had told him he could speak to the
lieutenant, but Kilcoyne said he had told Covino not to do so
but, in fact, Covino had done a lot more than that. He went to
an inspector and it had trickled down to hurt the Respondent.
Rossiter told Kilcoyne he did not know that Covino had spoken
to Kilcoyne before talking to him, and that Kilcoyne had told
him not to go to the police.
That same day Covino went in and spoke to the Respon-
dent’s president, Ken Kuchin, to complain of his discharge.
Rossiter was brought into the conversation and told Kuchin that
at the time he indicated he had no objection to Covino speaking
to a Port Authority lieutenant, but that at this time Rossiter had
no knowledge that Covino had spoken to Michael Kilcoyne and
that Kilcoyne had told him not to go to the police. Rossiter told
Kuchin that Covino had asked him permission to see the lieu-
tenant, but that he had gone to see several other people in the
Port Authority and, as a result, they were having trouble with
holding buses on the upper level of the Port Authority terminal.
Rossiter told Kuchin that he felt that he was very disappointed
that Covino had not been honest with him and that Covino had
not told him that he had already spoken to Mike Kilcoyne, and
for that reason he should not be given another chance. Rossiter
conceded that he might have called Covino a “shithouse law-
yer” and that he should have retained a real lawyer. Rossiter
concurred in Kilcoyne’s decision to discharge Covino and so
indicated to Kuchin. Rossiter testified on cross-examination
that he had received a telephone call from Inspector Farrell
after Covino’s termination, in which Farrell stated that Covino
had been very polite when they discussed the ticket he received.
Credibility Resolutions
In order to establish whether Covino was active on behalf of
the Union and whether the Respondent was aware of such ac-
tivity, one must examine the credibility of Covino and Eller.
Covino testified that he was active and distributed 25 cards.
However when questioned on cross-examination, he was un-
able to recall a single employee to whom he distributed cards,
nor any employee who submitted to him a signed card, or any
employee he talked to about the Union. Moreover, Covino’s
testimony was consistently vague and unresponsive. In connec-
tion with the issue of the Respondent’s knowledge of Covino’s
union activity Covino testified in response to a question by
General Counsel that:

He [Rossiter] was aware of my activity with the Un-
ion.

But when questioned on cross-examination, Covino testified
as follows:

JUDGE EDELMAN: I’d like to know how you conclude
that; on what basis did you conclude that?
THE WITNESS: Rossiter, up until the time that we
started to form the union, was never down—I won’t say
never is the—means not at all—hardly ever down in the
Heightstown location. Once we established starting to get
the union together, lo and behold, Rossiter showed up.
JUDGE EDELMAN: How often?
THE WITNESS: I would not say probably about once a
week.
SUBURBAN TRAILS 1253
JUDGE EDELMAN: Once a week. And that was on—on
any occasion when he showed up, did he observe you dis-
tributing cards or—
THE WITNESS: He did not—again, I don’t know
whether he did or he did not.
JUDGE EDELMAN: Well, assuming that—is there—
strike that. Are there any occasions that Rossiter or any
of those supervisors were present when you make a state-
ment that, yes, they saw me distributing cards or engaged
in some other union activity?
THE WITNESS: Yes, in some other activity.
JUDGE EDELMAN: What other activity?
THE WITNESS: Talking with the drivers.
JUDGE EDELMAN: Did they know what—did they
overhear your conversation?
THE WITNESS: I have no idea.
JUDGE EDELMAN: Well, then—in other words, then,
you can’t make a statement that they knew you was en-
gaged in union activities when you were talking with an-
other driver. You could have been talking about work-
related matters, couldn’t you?
WITNESS: It’s possible.
JUDGE EDELMAN: Okay. So there is no—is there any
circumstance that you can state, with some positiveness,
that the employer observed you engaged in union activities
and was aware—
WITNESS: Observed me?
JUDGE EDELMAN: —and was aware that you were en-
gaged in union activities?
THE WITNESS: Observed me? I don’t know.
JUDGE EDELMAN: Okay. Was there any occasion that
you are aware of where any of these supervisory people
indicated to you that they were aware of the activities that
you were engaged in?
THE WITNESS: Only after I was asked.
JUDGE EDELMAN: Asked what?
THE WITNESS: Kohn called us in—called all—almost
all the part-timers in individually and asked us how we felt
about the union.
JUDGE EDELMAN: Well, he asked everybody.
THE WITNESS: Sure.
JUDGE EDELMAN: Would not your testimony be that
because he asked you and everybody else, that he was
aware that you were engaged in union activity?
THE WITNESS: Yes.
JUDGE EDELMAN: How would not you draw that
conclusion?
?
THE WITNESS: Because I told him that I was.
JUDGE EDELMAN: What did you say to him?
THE WITNESS: I told him that I was in favor of the un-
ion; why I felt we needed a union and—
JUDGE EDELMAN: Well, he could certainly draw from
your conversation that you were pro-union, but is there
anything that you said to indicate that you are active on
behalf of the union, that you were distributing cards, that
you were talking about the union?
THE WITNESS: Not that I recall.
JUDGE EDELMAN: So my question is, again, then, is
there anything, any conduct, any statement by any of the
supervisors, namely Rossiter and Kohn and Kilcoyne, that
would not indicate to you that they were aware of the
activities that you were engaged in
THE WITNESS: Overtly, no.
JUDGE EDELMAN: Okay.

Accordingly, I conclude that Covino is a totally incredible
witness and not worthy of belief except where he makes admis-
sions against his interest.
I discredit James Eller, a union representative, employed by
the Respondent at the time of the union campaign. Eller was
often vague and simply did not impress me as a truthful wit-
ness. I find it unbelievable that Eller would not tell Rossiter
that Covino and another employee, Hasselbarth would not be
representing the Union after the election, because he wanted to
afford them protection for their activities during the campaign,
while not offering such protection to Green, Harris, Majors, and
other employees who were truly active in the Union’s cam-
paign. Moreover, the independent and credible evidence,
clearly establishes that Covino was an antiunion employee. I
therefore totally discredit Eller’s testimony.
I conclude that Majors, Harris, and Green were credible wit-
nesses. I was very impressed with their demeanor. They were
most responsive to questions put to them on direct and cross-
examination. In addition, their testimony was explicit, it was
very detailed and not the type of testimony that the employees
would not be able to fabricate, as contrasted with Covino’s
vague and often unresponsive testimony. Further, I conclude
that these employees had no motive to fabricate their testi-
mony.
In addition all three of the above witnesses credibly testified
that they never saw Covino wear any union insignia or any
other indicia of support for the Union.
Moreover, when Covino was recalled by the General Coun-
sel on rebuttal he did not rebut any of the testimony of Majors,
Harris, or Green.
Accordingly, I conclude that Majors, Harris, and Green are
credible witnesses.
I also conclude that Kohn, Rossiter, and Kilcoyne are credi-
ble witnesses. All three individuals testified in great detail,
including testimony against their interest. They were respon-
sive to questions put to them on direct and cross-examination
and their cross-examination was consistent with their their di-
rect examination.
Analysis and Conclusions
8(a)(1) Violations
The General Counsel alleged the Respondent violated Sec-
tion 8(a)(1) of the Act.
Covino testified that in December 1995 he had a conversa-
tion with Ronald Kohn at the Heightstown facility. The con-
versation, according to Covino, took place in the dispatch area.
Covino testified that Kohn asked him how he felt about the
Union, and he replied that he thought that unions had served a
good purpose. According to Covino, he then initialed a conver-
sation with Kohn, in which he offered to start a suggestion
program modeled after a military type program. Kohn testified
that he was active in the Respondent’s campaign, speaking with
part-time employees and presenting the Respondent’s point of
view, as to the Union. He recalls that conversation with
Covino, during which they discussed the upcoming election.
Covino told Kohn he was not really interested. He said he had
plans to leave the Company to build and manage a water rec-
reation park. Kohn testified that he told Covino and other em-
ployees that he did not believe the Union was necessary, that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
the Company had had part-timers working for them for over 20
years, and that he felt they had treated them fairly and would
not continue to do so. He denied asking Covino or any em-
ployee how they felt about the Union. For the reasons set forth
above, I credit Kohn.
Covino testified that he had two conversations with General
Manager Rossiter, one before the election and one after the
election. He testified that the first conversation took place
about 2 weeks before the election. It took place in the Heights-
town parking lot in front of the drivers’ door. Covino testified
he explained to Rossiter why he felt the Union was good. Dur-
ing the course of that conversation, Covino testified that Ros-
siter said that if the Union won, he was prepared to take the
Company into a strike.
Covino testified that he had a second conversation with Ros-
siter about the election 2 weeks after the voting. He contends
that during the course of this conversation Rossiter asked him
to encourage the drivers to withdraw their objections to the
election. He also testified that he told Rossiter that he had
voted “yes.”
Rossiter recalled both conversations. He testified that he
was at the Heightstown garage approximately 2 weeks before
the election, when Covino came up to him and introduced him-
self. This was the first time they met. Rossiter asked him for
his support in the election. Covino then turned the conversation
to his water slide project, indicating that he had talked to some
of the Trump people, soliciting their financial support. Rossiter
told Covino that he had had some dealings with the Economic
Development Authority, and could give him the card of an
individual who might be helpful to him. Rossiter denied that
Covino told him that he thought the Union was good for part-
time employees, or that he told him that he would not take the
Company out on strike if the Union won.
With regard to the second conversation with Covino, Ros-
siter testified that he was speaking to another individual in the
New Brunswick facility parking lot when Covino came up to
him. Rossiter asked him if he had contacted the EDA and in-
quired how the project was going. According to Rossiter, the
election was not discussed during that conversation. He ada-
mantly denied that there was any discussion with Covino of the
objections. Finally, he denied that Covino told him that he had
voted for the Union in the election.
As set forth above, I do not find Covino to be a credible wit-
ness. I do find Rossiter and Kohn to be credible witnesses.
Accordingly, I conclude that their conversations with Covino
did not violate Section 8(a)(1) as alleged in the complaint.
The Discharge of Covino
In determining whether an employer discriminates against an
employee because of his membership in or activity on behalf of
a labor organization, the General Counsel has the burden of
proving that the employees’ membership in, or activities on
behalf of such labor organization was a motivating factor in the
discrimination alleged. Once such factor is established, the
burden then shifts to the employer to establish that such action
would not have taken place in the absence of the employees’
membership in, or activities on behalf of such labor organiza-
tion. NLRB v. Transportation Management Corp., 462 U.S.
393 (1982); and Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d. 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
In view of my credibility resolutions I conclude that Covino
was at all times an employee who was not interested in joining
the Union, but rather was antiunion. I further conclude that he
engaged in no activity on behalf of the Union. I also conclude
that the Respondent had no knowledge nor any reason to
beleive that Covino was enagaged in any activity on behalf of
the Union.
The General Counsel has based its alleged union animus on
the alleged 8(a)(1) violations. In view of my conclusion that
the Respondent did not violate Section 8(a)(1) as alleged I
conclude that the Respondent Union did not have union ani-
mus.2
In view of the lack of union animus, and the absence of any
activity on behalf of the Union by Covino, or any suspected
union activity by the Respondent, I conclude that counsel for
the General Counsel has failed to meet its Wright Line burden
and accordingly conclude that the Respondent did not violate
Section 8(a)(1) and (3) of the Act, as alleged.
I am 100 percent convinced the sole reason for Covino’s
termination was his actions following the receipt of the parking
ticket by the Port Authority Bus Terminal police.
In this regard after Covino received the parking ticket, he
spoke to Operations Manager Kilcoyne who told him not to go
to the police, but to appeal the ticket to the court. Not satisfied
with this response, Covino, then went over Kilcoyne’s head and
spoke with Rossiter, without telling Rossiter of his conversation
with Kilcoyne. Rossiter told Covino he could see the police but
not “ruffle their feathers” because the police might take it out
on the Respondent’s busses. Covino did speak to several police
officials and complained that they should follow a uniform
policy of either ticketing all busses or none at all.
As a result of Covino’s several discussions with different
Port police officials the Port Authority Police issued warning
letters, harassed drivers to keep moving where they had previ-
ously been allowed to park. This is established by the credible
testimony of Harris, Majors, Green, Kilcoyne, and even the
General Counsel’s own witness Martin Daner. I conclude that
the General Counsel’s witness Police Officer Sullivan’s testi-
mony that no tickets were actually issued to the Respondent is
not inconsistent with the credible testimony described above.
I therefore conclude that Covino was discharged for insubor-
dination in going over Kilcoyne’s head to Rossiter and for the
chaos that resulted immediately following Covino’s complaints
to the police. I also note that the discharge of Covino’s com-
plaint to the Port Police took place immediately thereafter. I
further note that such activity is not alleged in the complaint as
protected concerted activity.

2 The General Counsel tried to introduce testimony and other evi-
dence as to the Respondent’s admitted and extensive antiunion cam-
paign. Such campaign was determined to have been protected by Sec.
8(c) of the Act in a related representation case. Nothing that took place
in this campaign was alleged to have been violative of Sec. 8(a)(1) nor
was the 8(c) activity as a whole alleged in the complaint to constitute
evidence of union animus. In view of the extensive litigation that could
have resulted had I ruled in favor of the General Counsel, I conclude
that the evidence at best would not have very little weight to establish
antiunion animus. Thus, on objection by the Respondent’s counsel, I
refused to permit the General Counsel to elicit such testimony.
SUBURBAN TRAILS 1255
Accordingly, I conclude that the Respondent did not dis-
charge Covino in violation of Section 8(a)(1) and (3) of the Act
as alleged in the complaint.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(1) and (3) as
alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The complaint is dismissed in its entirety.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses